Mirza Ameer Ullah Beg and Others vs State of U.P. and Others

Krishna Murari, J.—Heard Sri Bidhan Chandra Rai, learned counsel for the petitioners, learned Standing Counsel for the State respondents, Sri A.N. Singh for respondent No. 3, Allahabad Development Authority and Sri Manish Nigam, learned counsel for the respondent No. 4.

This writ petition arises out of proceedings under the Urban Land (Ceiling and Regulations) Act, 1976 (in short the ''Act, 1976'').

Undisputed facts are that an area of 342.07 sq. meter land of Bungalow No. 12/26, Sardar Patel Marg also known as Nazul plot No. G.G. I, Civil Station, Allahabad was declared to be surplus in the hands of the petitioners vide order dated 01.10.1994 passed under Section 8(4) of the Act, 1976. A notice dated 07.03.2000 was published by the respondent No. 3 Allahabad Development Authority for auction of the said property on 15.03.2000. In pursuance whereof, auction proceedings were held and the land was auctioned in favour of respondent No. 4, who was the highest bidder.

Aggrieved by the aforesaid auction, the petitioners filed the instant writ petition challenging the auction on the allegations that since the State Government failed to take possession of the land declared surplus under the provisions of Act, 1976, hence, after enforcement of the Urban Land (Ceiling and Regulations) Repeal Act, 1999 (in short the ''Act, 1999'') with effect from 18.3.1999, the entire proceedings stood abated and thus the Allahabad Development Authority had no jurisdiction or legal authority to put the same in auction. One of the relief claimed is a declaration holding that the area declared surplus still belongs to the petitioners and the same has not been vested either in the State or in Allahabad Development Authority. While entertaining the writ petition, a Division Bench of this Court vide order dated 04.04.2000 passed an order of status-quo with regard to possession, character and nature of the surplus land. The writ petition came to be allowed vide judgment and order dated 15.04.2009, which was challenged by the respondent No. 4 by filing a Special Leave Petition No. 20256 of 2009 before the Hon''ble Supreme Court. Leave was granted and Civil Appeal No. 4487 of 2014 was allowed by the Hon''ble Supreme Court vide judgment and order dated 11.4.2014 by making following order:

"Leave granted.

We do not think that it is necessary to consider the matter at length since, in our view, the High Court has allowed the writ petition without proper consideration of all aspects involved in the matter.

Consequently, Civil Appeal is allowed. The impugned order is set aside. Civil Misc. Writ Petition No. 16039 of 2000, Mirza Ammer Ullah Beg & Ors. vs. State of U.P. & Ors., is restored to the file of the High Court for fresh hearing, consideration and disposal.

We request the High Court to hear and decide the Writ Petition expeditiously.

No costs."

That is how the writ petition is before us.

The main issue for consideration is whether actual physical possession of the land declared surplus was taken over by the State on or before the enforcement of the Repeal Act, 1999 with effect from 18.03.1999 failing which the entire proceedings are liable to be abated under the provisions of the Repeal Act, 1999.

Specific case set up by the petitioners in the writ petition is that the petitioners are in physical possession of the surplus land in question and the same was never taken from them. Specific averments in this regard are contained in paragraphs 12 & 13 of the writ petition, which reads as under:

"12. That the petitioners are in physical possession of the surplus land in question. The possession was never taken from the petitioners either by the competent authority or by the State Government or by the Allahabad Development Authority. The name of the petitioners are still recorded in the revenue records/Nagar Nigam records.

That since no proceedings of any sort have been initiated under section 10 of the Act nor physical possession of the surplus land has been taken by the respondents, it is not open any longer by the respondents to sell the surplus land of the petitioner in view of the Repeal Act No. 15 of 1999."

Counter affidavit, supplementary counter affidavit, rejoinder affidavit and supplementary rejoinder affidavit have been filed by the parties. Since the dispute revolves around the question whether the State Government or the competent authority took over actual physical possession before enforcement of the Repeal Act, 1999, we are only referring averments made in the pleadings with respect to fact of possession over the area declared surplus.

Reply to the averments made in paragraphs 12 & 13 of the writ petition on behalf of the State authorities are contained in paragraph 9 of the counter affidavit which reads as under:

"9. That in reply to para Nos. 12 and 13 of the writ petition, it is stated that the answering respondents presumes that after notification under Section 10(3) of the Act, and the directions as contained in the orders/notice under Section 10(5) of the Act, the Allahabad Development Authority, i.e. the respondent No. 3 must have taken over the possession of the land in question under its management and control, as such, the proceedings under the Act had culminated into finality before coming into force of the Repeal Act, as such there was nothing left to be done with regards to the vesting of the land in the State and taking over the same by the Allahabad Development Authority in accordance with law as such the petitioner does not enjoy any benefit which can arise under the provisions concerning abatement of proceedings under the Repeal Act, 1999. However, more precise reply to the paragraphs in question can be given by the respondent No. 3. Copy of the notification under Section 10(3) and under Section 10(5) of the Act are annexed as Annexure No. CA-4 and CA-5 respectively."

There is no averment in the counter affidavit filed on behalf of the State in respect of possession of the land declared surplus having been taken by it or by any person authorized in this behalf. The averments of the counter affidavit quoted above clearly go to show that a presumption was drawn that after issuance of the notice under Section 10(5) of the Act, the possession must have been taken over by the Allahabad Development Authority. The provisions of Act, 1976 do not contemplate such a situation. Section 10(5) of the Act, 1976 provides that after vesting of the land in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person to be in possession of such land to surrender or deliver possession thereof to the State Government or to any person duly authorized by the State Government in this behalf within thirty days of the service of the notice. Under Section 10(6) of the Act, 1976, the competent authority is empowered to take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorized by the State Government in this behalf.

In view of the provisions of Section 10(5) and 10(6) of the Act, 1976, either the possession of the land declared surplus and vested in the State Government is to be surrendered by the person holding possession in favour of the State Government or to any person duly authorized by the State Government in this behalf and on failure of such person to handover or surrender possession, the competent authority is empowered to take forceful possession or give it to the concerned State Government or to any person duly authorized by it. The Act, 1976 does not contemplate any situation of presumption of taking over possession by a person/authority not authorized by the State government. In the case in hand, in the entire pleadings of the parties, no such document has been brought on record to demonstrate that Allahabad Development Authority was authorized by the State government to take possession of the land declared surplus.

In the absence of any such authorisation, the possession of the land declared surplus could not have been taken by the Development Authority. Even in the supplementary counter affidavit filed on behalf of the State authorities, there are no averments with respect to having taken over actual physical possession over the land declared surplus. In paragraph 7 of the supplementary counter affidavit, it has been stated that Allahabad Development Authority was sent a copy of notice issued under section 10(5) of the Act, 1976 for taking over possession of the excess vacant land in view of the fact that the same has been vested in the State Government free from all encumbrances upon publication of notification issued under Section 10(3) of the Act in official gazette and after expiry of period of thirty days from the date of issuance of notice under Section 10(5) of the Act.

The averments made in the counter affidavit and supplementary counter affidavit have categorically been denied by the petitioners in rejoinder affidavit and supplementary rejoinder affidavit.

In the counter affidavit filed on behalf of the respondent No. 4, the auction purchaser from the Allahabad Development Authority, the same stand as that of the State Government has been taken. In paragraphs 9 & 10 of the said counter affidavit, it has been stated that the competent authority after publication of notification in the official gazette issued a notice under Section 10(5) of the Act on 05.02.199, a copy of which was sent to the Secretary, Allahabad Development Authority authorising him to take possession of the excess vacant land. It has further been stated that Allahabad Development Authority has taken possession of the excess vacant land of the properties in respect of which there was no dispute and under the policy of the Government put the same to auction inviting offers and participation from the persons interested in the land through a notice.

In so far as respondent No. 3 Allahabad Development Authority is concerned, there is no counter affidavit on its behalf on the record of the case though a counter affidavit to the amendment application and a supplementary counter affidavit filed on its behalf is on record. In paragraph 5 of the counter affidavit to amendment application it is stated as under:

"5. That in reply to the contents of paragraph No. 3 and 4 of the affidavit filed in support of amendment application, it is submitted that notification u/s 10(3) was published on 23.01.1999 by virtue of which the land in question vested in State Government and subsequently vide notification u/s 10(5) notification was published on 05.02.1999 in regard to possession of the surplus land and pursuant to it the land was transferred to Allahabad Development Authority, which came in possession over the same."

The pleading not only lacks material particular in respect of transfer of possession but is also contrary to the case set up by the State Government. The Allahabad Development Authority alleges that possession of the land declared surplus was transferred in its favour whereas the State Government in its counter affidavit has alleged that in pursuance of notice under Section 10(5) of the Act, it is presumed that Development Authority must have taken possession. The plea set up by the two is in direct contradiction of each other. The contrary pleadings of the State and the Development Authority further strengthens the case of the petitioners that actual physical possession was not taken either by the State Government or even by Allahabad Development Authority.

Despite the above factual position of the case, in order to satisfy our conscious and to do complete justice between the parties, we vide order dated 19.08.2015 required the learned Standing Counsel to produce the original record pertaining to ceiling proceedings in respect of the land in dispute. In pursuance of the aforesaid order, learned Standing Counsel has produced the original records, which have been perused by us.

From the perusal of the original record, we find that notice under Section 10(5) of the Act, 1976 dated 05.02.1999 was issued in the name of late Hamid Ulla Beg and Smt. Kaneez Fatima but there is no material to demonstrate that it was ever served either on Smt. Kaneez Fatima or on any of the present petitioners, who are successors in interest of the recorded landholder. Further there is no possession memo or any other document even to indicate much less establish that actual physical possession of the land declared surplus was taken from the petitioners. A perusal of the original register containing Form U.L.C. III goes to show that entry in respect of the surplus land of the petitioners is recorded at serial No. 851. The date of handing over possession to the Allahabad Development Authority is entered as 13.10.1998.

It is surprising that the notice under Section 10(5) of the Act, which is dated 5.02.1999 was issued subsequent to handing over possession of the surplus land in favour of Allahabad Development Authority on 13.10.1998. In accordance with the Scheme of the Act and the provisions contained in Section 10(5) and 10(6) of the Act, 1976, possession could not have been taken over prior to issuance of notice under Section 10(5) of the Act. The aforesaid fact demonstrates that the entry has been made in the record by the officials sitting in their office without actual taking over possession of the land declared surplus.

Further in the absence of any possession memo on record, the only presumption which can be drawn is that though the land has been declared surplus but actual physical possession of the said land has not been taken over by the State. Normal mode of taking over possession is a memo prepared in presence of witness and taking possession of the land. The Hon''ble Supreme Court in the case of Balmokand Khatri Educational and Industrial Trust, Amritsar Vs. State of Punjab and others, has held that the normal mode of taking possession is drafting a panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land.

In Sita Ram Bhandar Society, New Delhi Vs. Lt. Governor, Govt. of N.C.T. Delhi and Others, and Omprakash Verma and Others Vs. State of Andhra Pradesh and Others, , the Apex Court has observed that when possession is to be taken of large tract of land then it is permissible to take possession by a properly executed panchnama.

In Banda Development Authority, Banda Vs. Moti Lal Agarwal and Others, the Supreme Court laid down the following principles as to what act would constitute taking possession of an acquired land, namely:

"(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.

(ii).....................

(iii)....................

(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the present of independent witnesses and getting their signatures on such document.

(v)...................... "

From the aforesaid law laid down by the Hon''ble Apex Court, it is clear that possession of a land can only be taken by the State through executing a panchnama or some document evidencing taking over of possession.

In the absence of possession memo or any other documentary evidence, a presumption cannot be drawn that by mere vesting, possession stands transferred in favour of the State. Further there exists no material on the record produced before us to demonstrate that even the Allahabad Development Authority took actual possession of the surplus land. The expression "possession" used in Repeal Act, 1999 has been interpreted to mean "actual physical possession" of the surplus land and not just possession contemplated with the vesting of excess land in terms of Section 10(3) of the Act, 1976.

In the case of State of U.P. Vs. Hari Ram, , the question for consideration before the Apex Court was whether deemed vesting of surplus land under Section 10(3) of the Act would amount taking over de facto possession depriving the landholders to the benefit of the saving clause under Section 3 of the Repeal Act. The Apex Court after dealing with the fact held that mere vesting of land under sub-section (3) of Section 10 of the Principal Act would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999 or forceful possession under Section 10(6) of the Act, 1976.

The same issue has been reaffirmed by the Apex court in the case of Gajanan Kamlya Patil Vs. Addl. Collector and Comp. Auth. and Others, .

In a recent decision in the case of State of Assam Vs. Bhaskar Jyoti Sarma, . It has been observed in paragraph 11 as under:

"11. Section 3 of the Repeal Act postulates that vesting any vacant land under Sub-section (3) of Section 10 , is subject to the condition that possession thereof has been taken over by the competent authority or by the State government or any person duly authorised by the State government. The expression "possession" used in Section 3 (supra) has been interpreted to mean "actual physical possession" of the surplus land and not just possession that goes with the vesting of excess land in terms of Section 10(3) of the Act............"

From the facts, discussions, pleadings of the parties and from perusal of the original record, we are satisfied that actual physical possession of the land was never taken by the State Government. There is no material existing on the original record to demonstrate that possession was taken over by the State Government or any person duly authorised by it or by the competent authority. Once the State Government itself never came in possession over the land in dispute prior to enforcement of Repeal Act, there does not arise any question of transferring possession of the said land in favour of the Allahabad Development Authority.

Once the State failed to establish that it obtained actual physical possession of the land declared surplus it had no legal authority to transfer to Allahabad Development Authority nor the Development Authority was vested with any jurisdiction or authority of law to auction the same. In such view of the matter, auction made in favour of respondent No. 4 by the Development Authority is untenable in the eye of law and does not create any right in his favour.

As a result, writ petition succeeds and stands allowed.

Auction proceedings in pursuance of the notice dated 08.03.2000 in respect of area 342.07 sq. meter land of property No. 12/26, Sardar Patel Marg also known as Nazul plot No. G.G. I, Civil Station, Allahabad is hereby quashed and it is declared that ceiling proceedings in respect of the said area of the land stands abated.

Further a writ of mandamus is issued commanding the respondents not to interfere in the peaceful possession of the petitioners over the said property in any manner. However, respondent No. 4 would be entitled to refund of the amount deposited by him in pursuance of the auction proceedings from the Development Authority.

However, in the facts and circumstances, there shall be no order as to costs.